back into a recessionary kind of period, rather take the risks on inflation and then take the risk on having to deal with deflation down the road so interest rates are low. the situation in energy which is not only going to drive manufacturing in this country and ultimately will lead to jobs in this country. the turnaround in housing. we have had a lot of problems, and we haven't chewed through all of them. haven't even throughed through all or part of them, but which eve chewed through a lot of them and nobody sounds a gun or blows a whistle when things have gotten better. sentiment is lagging and still slow, but i think the market as a whole, no one individual with the market as a whole is looking ahead and said with these advantages i think, you know, we could be on the threshold of a bull market. look what happened in the early '80s. that was a period, a period of very, very poor sentiment for a very long time. no one would have forecast a 20-year bull market cycle, and i can't even do that now, but i could tell you the fact that the

sentiment is negative will have no bearing on what happens. >> what about europe? how concerned are you about europe, that it's going to rear its ugly head yet again, that we haven't seen the worst, especially on the banking system? >> i think, that you know, to contrast europe and the united states, both areas went through a severe trauma to the credit of the united states. we put in a lot of changes. there was a lot of de-leveraging, banks, in particular, but other firms went out and raised a lot of capital quickly. liquidity and i think they are in very good shape, and, of course, no one has outrun having to deal with legacy issues, but they are being dealt with simultaneously or even after we've addressed the situation and gotten the economy, if you will, in a better shape. in europe they -- some of those haven't been done. there's not -- there's still a lot of leverage in the system. a lot of capital hasn't been raised, and they have -- one of

the things that gave europe its advantage and a tailwind which is the euro has also made it more difficult for those countries to really have an easing monetary policy or come to a consensus on things to support the economy, and so i think they have had a tougher time of doing it. now, they should be commended, the official sector in europe has done a lot to take the worst case scenarios off the table, like, for example, the collapse of the euro. that's not really in anyone's contemplation as it was a year ago. >> still sounds like you have a little bit of worry, a little bit of worry about the risks that remain in europe. >> well, the issues are growth. there are growth issues and high unemployment on the prifry, and even germany is showing issues with respect to growth because ultimately you're not going to grow if -- if your customers can't afford to buy your products. and so that's something that europe has to wrestle with. they have to wrestle with their

slow growth, and they have to figure out how to stimulate the economy, and like we're finding in this country, too, that's part of the debate in this country. your opportunities to stimulate the economy for growth are less and less the bigger your budget deficit is. you lose a little bit of flexibility when your budget deficit is so high. >> let me turn your attention before we go to -- back to the markets but to activism in the markets. you introduced tim cook today on stage earlier today. tim cook is facing a challenge from david einhorn the way that they are deploying massive amounts of cash that they have on their balance sheets. are activists like that, or in all cases, are they good for the markets? >> look, without addressing the particular situation that you described, i would say that activists are certainly useful. you can't necessarily take anything at face value because activists are -- have their own agenda, and some of them tend to be more short term. if you're running a company, you don't have the nimbleness and flex ann. you can't change your strategy

every day. an activist can get into or out of a shareholding any day. and so you have -- you have different time horizons, maybe different agendas, and a company has to represent all its shareholders, ant not just a portion of its shareholders and think for the long term. but having said that, it's a good part of the cocktail of elements that a ceo should have giving inflooins fluns, and they should be listened to. they shouldn't be taken as gospel. their remarks should be discounted by what you know their interests are, but it should be foolish to take good advice from wherever you want to get it. >> barclays is making news today in cutting more head count. you guys done, happy with where we are as we sit here today? >> we're happy where we are. we're always sculpting our business. in normal times we hire people. if we hire 100 people out of school, we don't have all 100

people 20 years, 25 years down. there's people who always leave and some are held to leave. always had a policy in our firm to tell the bottom 5% performers in our firm that it's probably -- they are probably better off in another firm or another industry, and that's something that i think is part of managing a company well. so that i would regard as a normal culling of the herd that we would have in our business regularly. i would say that we're more or less close to that kind of normal. now if conditions turn south, we would examine our head count and decide whether the firm should shrink extraordinarily and not just the ordinary work that we do in managing our population but, you know, something -- one of the reasons why we don't feel that pressure is that we made a lot of these adjustments early in this cycle, and in 2010 is when we did a lot of that kind of work. >> been a pleasure. >> thanks so much. i know you have to go and introduce marisa meyer who is going to take the stage in a few

moments. back to you. maria, bill. >> thanks very much. i was always under the impression, and you have insights on this, that the lloyd blankfein beard which first showed up in davos was a way to keep warm in the swiss alps. >> you a new look and it's working for him. hello, everybody. welcome to the "closing bell." bill, i think we're in five-year high territory. >> yes, we are. >> check it out. >> dow up 67 points, but on today's show, don't look now, but we could be closing above 14,000 for the first time since february 1st, and we could get ever closer to that mythical 14,164 all-time high on the dow. is it possible we could do that today? i doubt that. >> hard to believe, bill. >> we'll keep an eye. >> we're talking about all-time record highs here. the market driving towards new highs as the president is preparing to deliver the state of the union tonight just in a few hours from now. what does wall street want to hear? what might set the tone for the markets tomorrow? looking at proposals that could

send stocks a leg higher or spur a pullback tomorrow. >> let's show you the situation about the carnival cruiseship. a terrible story in the gump of mexico rapidly deteriorating. there's reports now of absolutely miserable conditions for the passengers on board. people forced to sleep on deck with limited access to bathrooms and food. we have a live report coming up on that story. >> but back to the top story. the rallying stock market, check it out, very close to the highs of the day, just shy of it earlier as bill mentioned. hit a five high high, intraday high of 14,037, but, of course, the all time you just saw is 120 points away or so. we are looking at this market continue to drive higher with money moving into aed bro base of equity. nasdaq also strong, check it out. nasdaq higher but now in negative territory, down three points. >> apple has been a laggard for that index today. >> that's what's taking the nasdaq into negative tir tray. >> s&p 500 looks like this, looking at gains there, 3.5 points on the nasdaq, now up

about three points. the dow back above the 14,000 mark. the all-time high within reach right now. >> yeah. 14,164 is the all-time high. we'll keep that down, write it down in pencil though. today's closing bell exchange, ralph acampora from altera investment solutions in snowy minnesota and carol roth, the author of "entrepreneur equation" in snowy chicago and so is rick santelli. ralph acampora, you've been calling for all-time highs. i mean, we're trying here, but aren't we due for a correction of some kind at some point? >> you know, everybody's worried about the correction, and i think the market is handling the situation in a very orderly manner. i am very, very impressed. we have our up days and pull barks, but i don't see anything to warrant major concern here, bill. >> let me ask you, ralph, in terms of the leadership of this market. are you expecting the leadership to continue to be what it has been in the last year?

mean, we're looking at the financial etf doing very well today, money moving into banks in a big way. is that going to be the group that brings us to the next high for this market? >> yes. i've been very positive on the financials, the industrials, health care. i know they have had a good run earlier, or i should say later last year, but, no, the momentum is still with those sectors. >> carol rorkts you had been skeptical of this market last time you were with us. you said you were willing to go with the trend which has continued higher here, but for how much longer? >> bill, i'm sure that you're very happy that i'm back in my contrarian position and i'm sure you were worried that i jumped on boards with the bulls. >> i couldn't sleep nights. >> i thought that might be the case. let's put it this way. not a full-on bear, a fuzzy baby cub. a little bit worried in terms of the risk-reward trade-off, the risk of what might not be priced

into the market already to drive it higher versus what might be priced in to make it tank. i think there's a huge imbalance there. right now i'm in protection mode. if you have benefitted from the strength over the last month or so, i think now is a good time to put in some stop losses if you're sophisticated in omgsz, to put in place a strategy to protect what you've made because i think a correction is not a matter of if but when. >> rick santelli, what are you seeing today? >> well, you know, i continue to look at that '07 high. 14,164 everybody references and as a technician and ral is a legendary technician, i would be surprise federal we don't give it a go. ever since the bottom in '09, to me you can't fight the liquidity. what it all means and how that all fits in is another question. today two things being talked about on the floor. s&p selective default of jamaica as they do basically a debt redo. and, of course, the notion that latin american countries are

getting very vocal in front of g-20. just think mexico, and us a look at the dollar versussopeso. you can say why, dealing with flows during present times and looking towards the future when it's all going to leave like pulling the drain on a sink, and i guess finally while all of this is going on in equities, look at a two-week chart of treasuries. we for two and a half weeks have remaineded in the six basis point closing raining, and today it doesn't look like it's going to break out of that. >> yeah, pretty narrow there. let me ask ralph and carol, have a little dialogue. where do you differ? carol, you're expecting this correction. ralf, you still think this market goes higher here, what are you looking at that's different here? ralph, you first. >> i would like to ask carol when she's talking about a correction, is she talking short term? >> yes. >> from a perspective, carol, i'm really a long-term investor, so a 5% or 10% correction, he can, that's a $20 stock going to

19 or 18, on its way to 30, so i -- i could care less about that correction. >> well, i think it depends on your perspective. i personally tend to be a longer term investor as well, but there are a lot of people who aren't so you have to look at the short and long-term perspective, and frankly with the way the markets have been going, it's been very short-term oriented in terms of the mentality. i think that there's a bigger risk that some unknown quantity, and lord knows we have enough with the currency war potential, with north korea, something that's not being priced in today, something that happens that causes a blip here in the market and someone participated in the strength and benefited would benefit from protecting themselves for that. i'm not saying it's necessarily long term but in the short term for certain. >> i disagree. the market is not short term. this move didn't start in january. it started in the middle of november. that was the low, and that was at the height of all the problems we had in the middle

east when they were shooting rockets at each other in the gaza. i mean, in the face of bad news, this thing has been climbing now for a couple of months. >> ralph, are there areas -- >> are there specific stocks or areas that you would like to buy at better levels that perhaps you would use any selloff to double down on? >> well, we talked about my love affair with financials and technology and health care, and i say if -- if carol is right and we get some kind of a pullback, man, i'd double up again. >> good to see you all. thank you for your thoughts. always good to see you. see you later. nasdaq trailing the other averages. seema modi is here to explain why. >> bill, first a story on the nasdaq, speculation that the nasdaq omx was in talks with private equity group carlisle to go private. sources close to the situation tell cnbc that buyout talks with carlisle have seized for now, and that's perhaps why we're

seeing shares of the nasdaq omx off of its highs. speaking of deal chatter, dell in focus. first it was southeastern asset management and now it's t. rowe price, the second largest shareholder voicing opposition to the buyout announcement saying it will not support a dell buyout as put forward and facebook, how quickly sentiment can change. up 20% on the year, and now up 4%. bernstein downgraded the stock yesterday. today btig lowered its rating to sell, writing that desktop ad revenue is set to peak in 2013, and that mobile growth is not enough. guys, back to you. >> all right. about 45 minutes sounds throughout the day. a market that's higher, dow jones industrial averages comfortably above 14,000. >> and the market rallying despite looming spending cuts. >> democratic senator chris van hollen has a plan to hold those off and will the gop sign off and wait until you hear why he

says we're in the mess to begin with. >> then we talk to the head of sony america. huge developments in that group on content. sony stock on a nice run since november. a lot to get in with sony's ceo about tech right now. >> plus, coffee talk. >> coffee talk. burger king is taking on mcdonald's with a new ambitious line of breakfast drinks, but are they trying too hard to be like their bitter rival? we've got that trade. it's burger king versus mickey d's coming up. how do traders using technical analysis streamline their process? at fidelity, we do it by merging two tools into one.

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welcome back. stocks are higher ahead tonight's state of the union address but how will the market react tomorrow. josh lipton with that angle. over to you, josh. >> the president's state of the union tonight probably won't be a big mover for the broad market if history is any guide here. most of these speeches see less than a 1% move in the stock market the following day, but the president will touch on themes that could really impact different sectors and asset classes. lpls jeff kleintop says he's

listening for two themes, automatic spending cuts possibly coming march 1st and energy independence. if the president is open to mitigating defense cuts in exchange for cuts elsewhere, rather than tax increases, that could be a positive for the defense stocks which have pulled back recently as that deadline approaches. names like general dynamics, lockheed martin and raytheon all in the red this year, unless change. defense spending will be cut by 8%. a second theme, energy independence. the president likely to voice his support for clean energy. kleintop points out stocks, producers of wind, solar and other clean energy, sources have been volatile around these speeches in recent years, sometimes seeing a big bounce that soon fades. some of those names were in the green today. first solar enjoying a pop. it's up some 9% so far this year. investors though unlikely to hear anything on natural gas or coal that could turn around slumping coal stocks. peabody energy and archcole down 10% and 19% respectively this

year. back to you, guys. >> all right, josh, thanks very much. yes, tonight president obama expected to address among many issues the automatic spending cuts scheduled to hit on march 1st. >> let's bring in democratic congressman chris van hollen of maryland who is no fan of these cuts. good to see you, sir. thanks for joining us. >> good to be with you. >> what's the alternative to the cuts right now? what would you like to see instead rather than the march 1st cuts taking effect? >> i would like to achieve the same amount of deficit reduction but instead of deep, meaningful and arbitrary cuts you spread that deficit reduction over a longer period of time so you don't get the drag on economic growth. our proposal is to replace that $85 billion in sequester with a combination of cuts by getting rid of some of the ag subsidies, direct paints that have no useful purpose, eliminating taxpayer subsidies for big oil companies, and then applying the buffet rule on incomes above $2 million. that would replace the sequester

for a year and give us an opportunity to come up with a long-term balanced approach based on tax reform and targeted cuts. >> that's all well and good, congressman, but here we are on february 12th. we're just a few weeks away from the march 1st deadline and i don't know if you know but senator mcconnell said a short time ago, told the wires that it's pretty clear planned spending cuts will go into effect on march 1st and he has no interest in last-minute negotiations to avoid them. i mean, isn't it -- doesn't it look more and more like it's inevitable that we'll get the sequester cuts anyway? >> well, bill, i'm worried that it is becoming more inevitable that we'll trip over that march 1st date where they would begin. i hope we can avoid it. we're going to propose our alternative plan in the house of representatives this week. i don't know if we'll even get a vote on it. but in the event we go past march 1st and trip into the sequester, i hope people will come to their senses and work together to replace the sequester, whether it's the proposal we have made or

something else. the congressional budget office, the non-partisan independent group, estimates that allowing the skywester to go into effect for the remainder of this year could cost up to 750,000 jobs, a big drag on the economy, and it's no way to deal with our budgets. it's arbitrary and indiscriminate. >> what's the answer though, because, i mean, that's where we're going, right? house dems want revenue increases and republicans are standing firm against it. something's got to give. are you going to budge on anything to avoid the sequestration? >> well, maria, as you know, we replaced the first two months of sequestration january and february with a combination of cuts and revenues, and that should be the model going forward. after all, as you know, many of these tax expenditures are spending through the tax code. there's no reason not to deal with both of these going forward. i was encouraged somewhat by senator mccain's comments over

the weekend which indicated that he believes that closing tax loopholes can be part of a balanced approach to eliminating, replacing the sequester. i mean, after all, if our republican colleagues are as worried about the defense cuts as they say they are, surely they should be willing to get rid of some of these tax breaks that have outlived their purposes. >> like which ones? which tax breaks would you like to eliminate? >> look, there's no reason to have taxpayers continuing to subsidize the big oil and goes industry. i also believe that the carried interest tax break should be eliminated. now, i know many of your viewers may not like that, but i don't see why a hedge fund manager should be given a special tax break compared to other people, you know, who manage portfolios or other people who are in management positions. >> that's been a long time. we're talking about this for a long time. how come nothing has been done about carried interest yet? this has been a conversation for

like three years already >> you know what, now we're pressed against the wall. this is the time to do it. surely that's a smarter way to deal with deficit reduction than allowing these arbitrary across-the-board cuts to take place which we know will hurt the economy. >> congressman, good to see you. thanks for joining us. >> always good to be with you. >> let's get to brian sullivan and breaking news on apple. what's going on there? >> another big proxy advisory firm coming out in support of apple and against hedge fund manager david einhorn saying they support apple's proposition 2. remember, basically that's sort of a highly technical thing, and i'll whittle it down here, the ability for apple to issue preferred stock with only the approval of shareholders. last week the biggest proxy firm came out in support of it and now the two biggest are saying that apple is in the right and really saying that david einhorn, saying just offer preferred stock, pay the shareholders back, sitting on

too much cash, is in the wrong. >> that's been the drag today on the nasdaq on an otherwise up day. thanks, brian, very much. headed towards the close with 35, 40 minutes left with the dow up 52 points. was up 67, but it would be the first close above 14,000 since february 1st. >> amazing. hey, have you heard this one. sony pictures spurning netflix to release a new deal with stars. michael linton is here with why he passed on netflix and the brewing content wars this the industry. that's all coming up. >> that's a fascinating part of what who gets to show what. also, much worse than we have previously heard. this crippled carnival cruise ship called triumph, believe us, when you hear these conditions, no one is winning on that boat right now. you'll get the latest on that. we want to know whether you would still take a cruise, by the way, in spice spite of all the recent disasters in the industry. tweet us your though

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welcome back. the content wars are waging on. movie and entertainment giant sony picked stars, covering films like "zero dark thiry" and "men in black 3," netflix was hoping to win. >> why is this the right choice for sony, especially at netflix

subscribeser keep growing, 40 million and counting for netflix. for that and more let's go to our own julia boorstin out in lovely california at the all things digital dive into media conference. julia? >> reporter: thanks so much, bill. i'm shund by michael linton who oversees all of sony's music, movies and tv business. sony corporation -- sony entertainment, inc. michael, the stars deal we've been talking about, know that netflix made a play for the movies. how did you end up with stars? >> stars has been our partner for many, many years. done really well with them. they made a terrific offer and decided to keep going with stars. that being said, do a lot of business with netflix. we were part of the "house of cards" production so we're happy to be with them as well. >> reporter: how is netflix changing your business which general, driving up prices when someone like stars accesses your content? >> doing a couple things, doing what you just described which is driving up prices in general, not just in the u.s. but other markets are netflix is present, but also it's another buyer, so

for things like television series that we have on existing cable networks and broadcast networks that we didn't have a buyer for in the past or maybe we had only a select number of prior, netflix provides another platform for us. >> also the music business and it looks like sony's music label, the business is bottoming. can you turn the business around and how? >> i think the music business in general has a very bright future. doug morris and the group he leads over there have done a fantastic job an i think between all the sharious new services coming on board they are taking maximum advantage of them and it's showing good result. >> maria bartiromo here in the studio. let me ask you to talk to us a bit about the business right now. what's driving your business. a lot of noise in terms of technology and the race to the top in terms of so many new devices. how could you say your business is being driven right now on the content side. >> i think the primary way that

it's being driven on the content side is there are many more devices that people can see the various telephone shows or watch the movies and listen to the music and the number of devices or proliferation of devices is really what's driving the revenue side and the profits and the business because there are more platforms and more devices that people are able to watch or listen to the content on. >> do you have to have a different pricing strategy depending on what we're talking about nerms of devices? i mean, you've done these content deals with the traditional distributors out there, but now you've got a whole new host of distributors. how are you doing in terms of keeping prices in check and your expense out of the business, given all of these knew distributors. >> well, i think certainly in the move side of the business, and the television side of the business, it really depends upon where in the life cycle of the film or the television those new platforms come in and a lot of pricing comes out of where in that life cycle the movies or television shows are seen.

typically it's after, for example, the dvd window. >> mr. linton, bill griffith here. i know you'll love all kind of -- i'm sure you get all kinds of advice from people on how to run your business. why not just buy netflix. >> all the time. >> i'm sure you do. why not buy netflix or stars or something like that? you talk about controlling pricing. wouldn't that be one way to do that if you control that distribution channel to begin with? >> well, we don't talk how much about controlling pricing. i think netflix and stars does a great job priding their services perfectly, and for us they are terrific customers and for a business like ours where now a majority business is outside the united states to make such a big bet on something like stars that only lives here in the u.s. wouldn't make a lot of cents. >> a lot of opportunity though, you could send it over's. >> tlert, but in those markets

there's a lot of competitors. >> there's talk that cbs would be a buyer. is your studio for sale? >> the studio is absolutely not for sale. neither is the music business. you know, that's been confirmed many times from kaz arai who runs the business back in tokyo. a rumor is a rumor but has no basis in fact. >> reporter: sounds like people are interested in buying it even though it's not for sale. >> that may be. that could be. >> reporter: michael linton, thanks so much for joining us. >> thanks for having me. >> reporter: maria and bill, back over to you. >> thanks, julia. >> final stretch of trading, the market is higher by 53 points. >> i think hi them thinking going overseas at the start. could the president actually spark a market correction with tonight's state of the union address? ron insana thinks so. he's here with former white house budget director peter orszag who will go head to head coming up in a moment.

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markets up 57 points just off the highs of the session right now, and we would point out if we close above 14,000, it would be the first time since february 1st that that has happened, and the last time we closed above 14,000 it had been five years. >> yeah. >> since we've been back to that level. yes, the nasdaq is lagging today. apple one of the big causes there. there's dow, up 57 points at 14,029. as president obama gears up for his state of the union address just hours from now, our ron insana says that speech could be a catalyst for a market pullback, so what could he say, the president, to trigger such a move, and what does mr. obama's former budget director think about that notion? >> ron insana joins us along with peter orszag, the vice chairman formerly with citigroup. >> what are you expecting to be

the crux of the president's speech tonight? >> i think he's telegraphed what he's emphasizing, immigration and something on economic growth. what we'll be looking for is what is the solution here, for example, on the sequester that we're starting to, you know, bump up against? what is the proposal? how are we going to get out of this mess? >> and ron, what do you think he says that could cause -- rattle the markets a bit? >> i should preface it, the thing that slips us into a 3% to 5% correction. the president has been making more noises about closing loopholes and raising taxes fort on higher income brackets, something we already went through with respect to the fiscal cliff negotiations, so i think as we move towards the sequester as peter just suggested, the more acrimonious this get and the more the two sides get entrenched around higher taxes on the wealthy or deeper spending cuts own times than either side wants the more likely we'll have a couple of tense weeks going into the sequester. that along with the executive

orders on energy and climate change, something that upsets the whole fracing revolution, that lo could get business people a little nervous. >> and the market has rallied all the end into the year. >> when is the moment when people are just ignoring the sequester and what have you. >> is that wise. >> we're in that indian summer. enjoy it while it sglasts lasts. >> senator mcconnell says the sequester happens march 1st and he's not interested on last-minute negotiations on that issue. shouldn't that be rattling the markets? >> you'd be talking about a quarter to half a percent off gdp for the rest of the fiscal year. the problem with the skywester is it's all on the spending side and it should be a mix. it's too much too soon, and we should be spreading the fiscal adjustment over time. >> what about ron's point, and he's not alone. the tax situation has already been resolved or at least addressed with the fiscal cliff

negotiations of december. why should we be talking about further tax reform at this point in the context of these spending cuts? >> well, i think everyone agrees that there are changes that would be desirable in the tax code and that it's not an efficient code. as you cut back on the tax breaks, what do you do with the money? do you pour it back into revenue neutral tax return or use part of it to off set some of the spending productions. >> that's if you could even get to tax reform which is easier said than done. >> at this point we're talking about the reduction of loopholes and further tax increases and peter said it would be too much too soon for the economy. with the payroll tax holiday coming off, anybody making $50,000 is paying $1,000 a more in year as taxes as was expected, but the president's only talking about tax increases to fund revenue reduction, so that to me is a double hit to the economy. i think if we're talking about tax reform, if we were talking about simpson/bowles where

there's both entitlement reform and tax reform and getting rid of lop holes that all makes sense in the larger context. taken piece meal, it could be problematic for the markets short run? what kind of an impact does sequestration have on the economy, in your view. >> reporter: hypically speaking we see the cuts take place on march 1st. what kind of impact do you think this will have? >> something like a quarter or half a percent of dgp. larger or something next year. for an economy that's just chugging along at 2% growth, taking another 0.3% off is not what we want to be doing. the problem here is the right approach is a lot of deficit reduction that's pushed out in time, that's focused more on entamts, that's phased in slowly coupled with, if anything, the economy up front. that bar well. we're not doing bun of them. >> maybe that hit to gdp is

worth it if it means that much more deficit reduction. >> howard dean is more of a deficit hawk? this year's deficit 800 billion and next year's 600 billion. short-term phenomenon and there's a report of health care costs down now, and i don't know if it's a structural or cyclical spin. >> i've been on this point for a while so i'm glad it's getting broader attention. >> health care costs are declining. >> the rate of growth is much more slowly. it's been several years so it's harder to write it off as just kind of a fleeting moment, and if it continues, that has a far larger impact on the long-term deficit than anything the guys in washington are going to put aside. >> that's why the president's rhetoric on taxes might matter to wall street this time >> good to see you guys. thank you, both. >> thanks, peter. thank you, ron. >> tune into the state of the union right here on cnbc beginning at 9:00 p.m. eastern

time. carl kwinquintanilla and john harwood hosting our coverage. >> the market is up above 14,000 with a gain of 52 point on the dow. >> we'll see if it stays there. the fast food wars are perking up today asburg kings rolls out a new mcdonald's-like coffee men ur. when we come back, we'll see if it's a legacy for success. >> twitter and american express allow consumers to buy a discounted item by using a special hashtag. the debate coming up.

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it's one more innovative reason serious investors are choosing fidelity. now get 200 free trades when you open an account. welcome back. we have breaking news on apple. let's get to scott wapner right now. scott? >> reporter: all right, maria, thanks so much. the david and goliath battle between green light's david einhorn and apple takes another interesting turn here as today the reason why i'm coming to you live from san francisco is we are at the goldman sachs technology and internet conference where earlier today

tim cook, the ceo of apple, took the stage here to my right and addressed david einhorn directly saying we are going to thoroughly consider green light's proposal. he also did call it a silly sideshow, however. now a response from a greenlight spokesperson saying as follows. if apple thinks the lawsuit is a waste of resources, it could simply end the matter by complying with existing law and filing a new proxy that unbundles the proposed changes to the charter so that shareholders could express their views on each matter separately. all of this, of course, comes back to the news of last week that david einhorn is suing apple, challenging the company to issue preferred stock as waive dealing with the $137 billion cash that is currently sitting on the balance sheet. apple is trying to do away with something in their proxy proposal. it's proposal number two, which would eliminate their ability to issue preferred stock. so tim cook addresses david einhorn today and greenlight capital this afternoon responds yet again.

the ball is now in apple's court. if they say anything, you know we'll bring it to you first. >> we know you will and the stock sitting there a standout selloff and meantime the coffee wars are heading into foot of food chains. burger king firing a shot at rival mcdonald's announcing a new line of coffee drinks. mcdonald's has made big inroads in their breakfast business with a higher-end blend of coffee. does burger king have enough caffeine to challenge mccafe? let's start talking numbers with steve cortes and cnbc contributor and paul hickee. good to see you both. thanks for joining us today. steve, what do you think, mcdonald's or burger king? >> i'm a fan mcdurs here. regarding burger king the problem isn't cove but the horse meat they have been serving over in the u.s. i want to read about "seabiscuit," not eat him and when i look technically at burger king, an uninspired

chart. but conversely i think mcdonald's is a very interesting one and compelling one. >> mcdonald's in very september and october. ran up resistance at $94. two major highs and a significant selloff into the november period. since that tie, subsequently we've taken out that 2k4r59 94 resistance level and now the pullback low is $94. i believe we've formed a very powerful pivot of technical support. we see this in the markets where technically a former ceiling becomes a floor. as long as it stays above 94, i think it is bullish. >> what do you think, steve? what are you looking at fundamentally? >> looking at both of these names and the ratings that we spoke of, neither looks particularly attractive, an when you think about the two companies, there's a lot of issues here, a lot of competition outside of the

cove's face. you have other chains such as parera and then the food police going after say salt. not good for what the company serves. the value menu where mcdonald's has seen success, that's a very low-margin business and that's when your best area of strength not the best of margins. >> tight on type. thanks for both of your thoughts on mcdonald's versus burger king. see you later. >> in sort of five-year territory. earlier the dows higher about 45 points. >> they say breaking is up hard to do, and that's why it's a good thing banks are coming up with new ways to bring returns to their shareholders. >> what does wall street want to hear from the president to the. we'll talk to two top money

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less than ten minutes to go. the market hanging on to these

gains to remain above 14,000. a close above 14,000 would be the first time we've done that since february 1st, and we're just off of five-year highs that were set earlier today. >> pretty amazing. broad-based today, though apple is keeping the nasdaq negative. >> yeah. that's right. we'll talk more about that coming up. first though, new details in the tesla versus "new york times" controversy that we visited yesterday. phil lebeau has the latest now. >> reporter: the "new york times" is defending its article reviewing the model "s." comments yesterday from the tesla show on the "closing bell." today "new york times" saying the reporter who wrote the review, it happened just the way i described it. my account was not a fake. that's coming from john broder who did the review. he also says in his article that he just posted this afternoon that the model "s" was charged to 90% when he did the test drive. the long detour referred to was actually two miles according to mr. broder and he drove 100 miles at 55 miles per hour, well below the speed limit.

take a look at shares of tesla. rea minder that they will be posting an update on their blog so this war of words between tesla and the "new york times" continues. >> thanks very much. the pressure continues across the chord on the bank. one bank, barclays, has announced a restructuring inside. >> reporter: shareholders for since month have been angling for a breakup at barclays, should be sitting pretty, shares rising 9% on the backs of an extensive restructuring, laying off people and cutting 7.7 billion in share. barclays took time look are for investment strategies, which to exit and which to grow. roe at 18% is the majority of

its targets and 12 also. with reentire of the whole group. that is tied to that goal which still sets a higher bar than most of the u.s. banks even though reason has opinion realigning its business and it's sort to realize how important certain metrics are. harvey schwartz says banks will move to a higher rebaurn because they are expecting more volatility. >> there is a new phenomenon to see banks drawing a hine in the sand for investors to look at. >> absolutely. thanks so much. these issues will continue to front and center for the banks, bill. still a changing industry.

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